Mickle v. Montgomery

• Decision Date: 10 June 1896
• Citation: 111 Ala. 415,20 So. 441
• Parties: MICKLE ET AL. v. MONTGOMERY.
• Court: Alabama Supreme Court

20 So. 441

111 Ala. 415

MICKLE ET AL. v. MONTGOMERY.

Supreme Court of Alabama

June 10, 1896

Appeal from circuit court, Randolph county; Leon Duke, Special Judge.

Action of ejectment by H. B. T. Montgomery against E. P. Mickle and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

This was a statutory action of ejectment, brought by the appellee H. B. T. Montgomery, against the appellants, to recover certain lands specifically described in the complaint. Issue was joined upon the plea of not guilty. The plaintiff's right to the property sued for was rested upon a sheriff's deed conveying the property in controversy. Upon the trial of the cause, as is shown by the bill of exceptions, the plaintiff introduced in evidence the proceedings in a suit before a justice of the peace, by Penn & Co. against the Randolph & Chambers Co-operative Mercantile Association, of Alabama, a corporation. In this suit judgment was rendered against the defendant on September 26 1891, and execution was issued thereon by the justice of the peace on October 7, 1891. This execution was delivered to the sheriff, and was returned by the sheriff on October 20, 1891 and had indorsed upon it that the defendant had no personal property known to the sheriff, and that, therefore, he had levied the execution upon the lot or tract of land sued for in this action. Upon the plaintiff's offering to introduce in evidence this execution and indorsement thereon, the defendant objected, on the ground that the levy and indorsement were made by the sheriff of the county, and not by the constable, and that the sheriff was not authorized to levy an execution issued by a justice of the peace. This objection was overruled, and the defendant duly excepted. This execution, with the indorsement thereon, was returned to the circuit court, and upon motion made by the plaintiff, for the sale of the lands under the levy, the motion was granted, and a writ of venditioni exponas was issued. Under this writ, the sheriff sold the land involved in this controversy, and at this sale the plaintiff became the purchaser, and received from said sheriff a deed to said land, duly and legally executed, and bearing date November 14, 1892. The evidence of the plaintiff as to the possession by the defendant in execution of the lands sued for was the testimony of one F. P. Randle, as a witness for the plaintiff, who testified "that parties had occupied the premises sued for under the Randolph & Chambers Co-operative Mercantile Association, of Alabama." The bill of exceptions then recites: "But the witness did not give the terms or names of the parties so occupying, or any contract or arrangement he or they had with said association as to said occupancy." The defendants offered in writing an original paper writing, bearing date August 7, 1891. This written instrument purported to be a deed from the Randolph & Chambers Co-operative Mercantile Association to W. A. Radney and others, in which the lands sued for in this action, and embraced in the sheriff's levy and deed, were conveyed to said grantees. This deed was signed in the following manner: "Given under our hands and seal, this the 7th day of August, A. D. 1891, and the seal of said association, August 7, 1891. H. M. Mickle, President of the Randolph & Chambers Co-operative Mercantile Association. J. W. Manning, Secretary of the Randolph & Chambers Co-operative Mercantile Association. [L. S.]" The execution of the deed was acknowledged by H. M. Mickle, president, and John W. Manning, secretary, before a justice of the peace. The defendants objected to the introduction of said writing in evidence, on the grounds that it was not the deed of the Randolph & Chambers Co-operative Mercantile Association, that it was not signed by said association, and that there was shown no authority authorizing Mickle, as president, and Manning, as secretary, to make the deed. The court sustained the objection, refused to permit the instrument to be introduced in evidence, and to this ruling the defendants duly excepted. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the general affirmative charge in his favor. The defendants duly excepted to the giving of this charge, and also reserved an exception to the court's refusal to give the general affirmative charge in their favor. There were verdict and judgment for the plaintiff. The defendants appeal, and assign as error the rulings of the court upon the evidence, and the giving of the general affirmative charge for the plaintiff, and the refusal of a similar charge in favor of the defendants.

James Aiken and J. R. Dowdell, for appellants.

E. M. Oliver, for appellee.

BRICKELL C.J.

Originally all civil process issued by a justice of the peace, except in proceedings for the forcible entry and detainer, or the unlawful detainer of...